96 Ill. App. 254 | Ill. App. Ct. | 1901
delivered the opinion of the court.
The plaintiff, in his argument, refers to admissions :he ■Claims were made by the defendant in the-special pleas filed by him, and insists that as his demurrer to such pleas was sustained the defendant is estopped from denying what he stated in such pleas. In this State, a defendant is permitted to file inconsistent pleas. What reasons actuated the court in sustaining the demurrer to the pleas is immaterial. The defendant elected to stand by his pleas, and to rely on the trial upon the general issues interposed by him. For the purposes of the trial, the special pleas interposed by the defendant, to which a demurrer 'was sustained, were out of the case. Had there been a verdict for the plaintiff, the defendant might then have urged j;hat the court erred in sustaining -such demurrer, ■and that he, the defendant, was thereby precluded from making a defense which he otherwise would: As it is, the verdict being for the defendant, what was stated or admitted in these unsworn special pleas is of no consequence. The plaintiff testified that the testimony of the defendant, that he consented to the form and manner in which the defendant’s bills presented to the auditor of public accounts were made out, was entirely false; that he never made any suggestions whatever in respect thereto, and had neither notice, knowledge nor intimation that any of the bills-had been made out as they were until long after the bills had been paid. The plaintiff insisted at the trial, and insists now, that the bills .presented by the defendant to the auditor of public accounts, and paid out of the State treasury, show that the defendant received $9,600 from the State treasurer for 'the use and benefit of him, the plaintiff; that the defendant was and is estopped to deny the truth of what was represented by him in the accounts he presented, and from denying that he received for the use and benefit of the plaintiff the various sums mentioned therein, as claims made on account of the services of the plaintiff; and the plaintiff in his argument in this court says:
“ISTo effort, however, xvas made by the plaintiff to litigate the question as to whether or not the said services had been fully paid for, nor whether any portion of said payments should be applied upon the services mentioned in said vouchers, because the plaintiff’s position is that the defendant was bound by law to pay over to the plaintiff the money which he had received for the plaintiff’s use, and that he was precluded from setting up as a defense that the money, or any part thereof, belongs to the State, Mo testimony was therefore introduced by the plaintiff as to the value of his services, whether rendered in insurance cases, in homestead, loan, or building association cases, in court of claims cases, or in so-called trust cases, but he rested his case, so far as the count for money had and received was concerned, upon the proof showing the auditing of his said accounts by the executive officers of the State as being correct, and a certificate of the defendant that such money was due from the State to the plaintiff, and the- admission of the defendant that he had received said moneys and had refused to pay them over to the plaintiff.”
The plaintiff’s further contention—that the question sought to be raised by the defendant, that the moneys aforesaid were not fully earned by the plaintiff in the particular department mentioned, and consequently were not all due the plaintiff—was, and is, a question to be determined between the plaintiff and the State, a question in which the defendant is in no wise legitimately concerned; that the said question can be determined only when the moneys shall have been paid over to the plaintiff, unless the defendant is in a position to file a bill of interpleader and bring the money into court to be disposed of as between the plaintiff and the State by the decree of the court.
The plaintiff rested his case in chief, upon the introduction of the vouchers and orders hereinbefore set forth, the admission of the defendant that he had received the moneys called for by the said orders upon the state treasurer, and testimony as to the services by him rendered for the defendant in the foreclosure suit of Moloney v. White, and evidence as to what such services were reasonably worth.
Although at the conclusion of the plaintiff’s case in chief, no motion to take the case from the jury or to instruct them to find a verdict for the defendant upon the count for money had and received was made, yet it is not out of place, in view of the plaintiff’s "contention, to consider whether the plaintiff did, by the testimony introduced by him, make a prima facie case as to anything except the service by him rendered to the defendant in the foreclosure case of Moloney v. White. That is to say, did he make a prima facie case on which he was entitled to recover any of the moneys received by the defendant upon the orders on the state treasurer introduced in evidence. The first account, dated April 5, 1895, rendered by the plaintiff is:
“ State of Illinois
To M. T. Moloney, Attorney-General, Dr.
To moneys contracted for, advanced.and paid out by me under my order and direction in the discharge of the duties imposed on me by law on account of the legal expenses of the insurance department.”
Which account contains, among other items, this:
“To Samuel Eicholson, for services in attending to insurance cases in Chicago, and Peoria from the first of July, 3893, to the first of April, 1895, at $20 per day, as per contract, $4,000.”
The order drawn in satisfaction of such account is:
“ Pay M. T. Moloney, Attorney-General, or order, $6,-151.59 for moneys contracted for, advanced and paid out by attorney-general on account of legal expenses of insurance department.”
There is neither in the bill rendered nor in the order given in satisfaction thereof, anything- showing that either the auditor or the governor understood that the $4,000 mentioned therein was a sum of money which defendant was to receive for the purpose of paying the same over to the plaintiffs. The representation by the attorney-general, the defendant, in presenting such bill, was that he had already paid to Samuel Eicholson, $4,000 for services by him rendered in insurance cases. The plaintiff had no account with the State of Illinois. It was not indebted to him. The appropriation made by the legislature in 1893 was:
• “ To the auditor of public accounts for the expenses of the insurance department of his office, the following: * * * For the legal expenses of the insurance department, to be expended by the order and under the direction of the attorney-general of the State, the sum of $1,000 per annum.”
The appropriation of 1895 was:
“ To the attorney-general for an assistant, the sum of $2,500 per annum; for a second assistant, the sum of $1,800 per annum. * * * To the attorney-general for telegraphing, postage and other necessary expenses incurred in the discharge of the duties of the office, a sum not to exceed $2,000 per annum for legal and other incidental expenses incident to the discharge of his duties in relation to the building loan and homestead associations, a sum not to exceed $3,000 per annum; for the legal and other expenses incident to the performance of his duties in relation to the insurance laws, a sum not to exceed $6,000 per annum, payable on bills certified to by him, and approved by the governor.”
Hone of the orders drawn by the auditor were in satisfaction of any claim against the State by the plaintiff. The plaintiff’s name, like the names of other parties, appears in the account for the purpose of showing in what manner the attorney-general had agreed to, or had actually expended the appropriation under his control, like the items for rent and for incidental expenses. The name of the plaintiff was inserted only for the purpose of giving detailed information to the auditor as to in what manner the appropriation of which the attorney-general had control had been or was to be expended.
If the plaintiff did, by reason of his employment so to do, render service in cases in which the attorney-general represented the State, his claim for remuneration therefor was against the attorney-general and not the State. Doubtless the attorney-general might have rendered to the auditor an account for legal services by the plaintiff rendered and for moneys by him earned therefor which had not been paid, and he might have asked the auditor for an order on the State treasurer within the limits of the appropriation, to enable him, the defendant, to pay the plaintiff for such services.so rendered; and upon such bill, if found to be correct and the matters therein stated to be true, the auditor might have drawn his warrant in favor of the defendant in order that he might pay the plaintiff what, for such service, was due him. But the auditor, under the appropriations, could not legally have, drawn an. order directing the state treasurer to pay directly to the plaintiff, because there was no appropriation to the plaintiff, and the state treasurer- could properly pay only upon the receipt, or. order of the person to whom the appropriation - was made..
The-language of some of the vouchers is -variant from' that of the one already commented upon, but each of them was a representation to the auditor by the attorney-general that the latter had alreadv paid the plaintiff the • money, which the defendant, as attorney-general, was asking the auditor to give him an order on the state treasurer.for. So far as.appears from the bills rendered and the orders given,, the defendant received all the money paid by him to the state treasurer for his own benefit and behoof, and none-of it for the use and benefit-of the plaintiff. The vouchers ■ and orders were properly admitted in evidence. This done, it was for the plaintiff to show that- he had rendered the. services -to the attorney-general, as such, described in the various accounts-presented; The plaintiff did show, it was. undisputed, that he had rendered to the'attorney-general as-such, some service in the - business of the State. Whether he had been paid therefor, and what amount, under his employ menfiby the attorney -general as such, he was entitled-to receive, were questions- to be submitted to the jury.
The case -is in-some respects peculiar. According to the evidence-introduced by the defendant, and his own testimony, there was-no contract for-the payment'of any specific sum orycr diem to the plaintiff for the work he did, and-: the entire value of the services rendered' by him to the - State can not have exceeded $500; according to the - testi-. mony of the defendant himself, a much, less sum. While in the personal matter of the defendant, the foreclosure, suit of'Moloney v. White, according to the testimony of. the defendant, the plaintiff is entitled to nothing, nor does the plaintiff for his services in such case claim more than §500. Yet, the defendant testifies that he has paid to the plaintiff for his legal services a sum equal to $8,000 by less than $ L00—in other words over $7,900. Under the evidence introduced by the defendant, and his own testimony as to the entire services rendered by the plaintiff, both for the-State and the defendant, personally* for what was paid the sum of more than $7,000—to which, according to the testimony of the defendant, the plaintiff was in no way or wise entitled?
It is quite true, as is contended by plaintiff, that in an action for. money, had and received a bailee can not avail himself of the title or ownership of a third .person although that person be the true ■ owner, and that a bailee can sit up the title of another only-if he holds upon the right- and title and by the authority of that other. The Idaho, 93 U. S. 575; Western Transportation Co. v. Barber, 56 N. Y. 544; Thorne v. Tilbury, 3 H. & N. 543.
Bor. can one who has received money for the use of another defend against the claim of such person .upon the-ground that- there was some irregularity in the proceedings under which the money was obtained; so . a tax collector can not retain money by him collected because the tax was irregularly imposed and irregularly assessed. Ross v. Curtis, 31 N. Y. 606; Morris v. State, 47 Texas, 583.
Bor can an agent who has received money belonging to his principal upon the sale of goods ■ irregularly passed through the custom house without the duty having been-paid, set up such .a defense when-sued by his principal.
The present case does .not come within any such rule,but within, the well. known principle -that in an.action for money had and received the plaintiff "can not recover unless the- evidence shows that the money in justice belongs to, him. Taylor v. Taylor, 20 Ill 650; Allen v. Stenger, 74 Ill. 119; Beldon v. Perkins, 78 Ill. 449; Eddy v. Smith, 13 Wendell, 489; Clark v. Dignan, 3 Meeson & Welsby’s Exchequer, 478; Watson v. Wolverton, 41 Ill. 241.
The difficulty with the plaintiff’s position is, that however clearly he may have shown that the money received by the defendant from the State does not belong to him, he has not shown that in equity and good conscience it belongs to. Samuel Richolson.
In or would the plaintiff’s position be any better if it were the case that the accounts presented by the defendant to the State auditor, instead of being in the language they are, had read, “For money contracted to be paid and now due to Samuel Richolson for legal services by him rendered under the employment of the attorney-general.” The contention would then, as now, be, what has the plaintiff done to entitle him to receive this money, either from the State or from the defendant?
The position taken by the plaintiff is realty this: The defendant perpetrated a fraud upon the auditor and the State of Illinois, and obtained by false representations from the latter the sum of $9,600. The defendant falsely represented that I had earned and that such money was due me, and by such false representation obtained this large sum. Because of the successful false and fraudulent use of my name by the defendant to obtain money, I, as against the defendant, am entitled to take advantage of and profit by his fraud and iniquity.
We are not aware of any case in which it has been held that an innocent party can thus profit by the turpitude of another.
In stating the attitude occupied by the plaintiff, we do not wish to be .understood that he concedes that the defendant did not realty owe him the money which he obtained bv the use of his name. The plaintiff does declare that he earned and is entitled to much more than he received from ■ the defendant, but his insistence in this action in the' c'ourt below was, and now is, that it was not necessary for him to prove that he had done any work for the attorney-general as such,. that the mere fact that the attorney-general presented the bills and obtained the money he did, without, as plaintiff claims,any knowledge of or connivance, upon his part, at the fraudulent representations of the plaintiff, is sufficient to entitle him. to recover from the defendant the moneys so, under such circumstances, received by him.
Mor does the plaintiff deny but that the State of Illinois may have a claim superior to his, to these moneys. He only insists that such superior claim, if any, of the State, can not be considered in this action.
As before stated, we do not agree with plaintiff in his contention. The jury were fairly instructed as to the issues presented by the pleadings, and in the record we find no error warranting a reversal.
The judgment of the Circuit Court is therefore affirmed.
